(1.) The plaintiff-respondent in this appeal obtained a decree on a mortgage on the 28th July 1905. The date fixed for payment was the 28th January 1906. On the 31st May 1909, he applied, as the Courts below describe it, to make the decree absolute and his application was granted the same day. The defendant appealed, and the appeal was decreed and the case remanded to the Court of first instance on the 7th March 1910. An appeal was preferred to this Court against the order of remand probably about June 1910. The proceeding, however, continued in the first Court and was disposed of on the 19th September 1910. The Court of first instance held that the application to make the decree obsolete was barred by Article 181 of the Schedule to the Limitation Act. On the 21st April 1911, this Court dismissed the appeal against the order of the 7th March 1910, and on the 16th May 1911, the plaintiff appealed to the lower Appellate Court against the order of the 19th September 1910. The appeal was decreed and the defendant has appealed to this Court.
(2.) It is contended on his behalf, firstly, that the appeal to the lower Appellate Court was barred by limitation and, secondly, that the application of May 1909 was barred by Article 181 of the Schedule to the Limitation Act. It appears to me that the appeal must succeed on both grounds.
(3.) With regard to the first point, the Subordinate Judge has held that limitation is saved by Section 14 of the Act. That section, however, has no application to appeals, nor do I think that the case comes within Section 5. We are informed that the plaintiff protested against the continuance of the proceedings in the Court of first instance after the presentation of his appeal to this Court. But the fact that this protest was overruled should have warned him that the lower Appellate Court also might take a similar view; and he ought, therefore, in my opinion, to have presented his appeal against the order of the 19th September 1910 within the period allowed by law.